W.C. No. 4-201-879Industrial Claim Appeals Office.
April 8, 1996
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Rumler (ALJ) dated November 29, 1995. We affirm.
This matter was previously before us. In an order dated April 28, 1995, we reversed the ALJ’s previous determination the claimant’s right wrist injury did not arise out of and in the course of the claimant’s employment for the respondent.
The ALJ’s determination was based upon a “positional risk” analysis. However, we stated that a “positional risk” analysis applies to circumstances where the only connection between the injury and the employment is the fact that the obligations of the employment place the claimant at a particular place where the claimant is injured by a neutral force. In Re Questions Submitted by U.S. Court of Appeals, 759 P.2d 17
(Colo. 1988); H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). We also stated that a “positional risk” analysis is not necessary if the cause of the claimant’s injury is an event or instrumentality distinctly associated with the employment. 1 Larson, Workmens’ Compensation Law, § 10.00 (1995); H H Warehouse v. Vicory, 805 P.2d at 1168.
Based upon stipulated facts, which we shall not repeat here, we concluded that the claimant’s wrist injury occurred while performing an act which was incidental to the conditions of her employment with the respondent. Accordingly, we concluded that the injury “arose out of” and “in the course of” the claimant’s employment. As a consequence we did not consider whether the injury was also compensable under a “positional risk” analysis.
On remand, ALJ Rumler issued her order of November 29, 1995, which awarded the claimant temporary disability and medical benefits. The respondent timely appealed.
On appeal the sole issue is whether we erred in our conclusion that the claimant’s injury arose out of and in the course of her employment. The respondent argues that the cause of the injury was not incidental to the claimant’s employment. The respondent also argues that the claimant’s injury is not compensable under a “positional risk” analysis.
The reasoning relied upon in reaching our conclusion that the claimant’s injury is compensable, is set forth in detail in our April 28 order. The respondent’s argument does not persuade us to alter our conclusion. Therefore, insofar as the respondent requests us to reconsider our order, we decline to do so and adhere to our previous determination concerning the issue of compensability.
Under these circumstances, the respondent has not presented grounds which afford us a basis to disturb the ALJ’s award of benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 29, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed April 8, 1996 to the following parties:
Susanna Goff, 6800 E. Tennessee, #631, Denver, CO 80224
City County of Denver, 1445 Cleveland Pl., Annex 1, #200, Denver, CO 80202
Dan R. Cohen, Esq., 700 Broadway, #1101, Denver, CO 80203
(For Claimant)
John R. Palermo, Esq., City Attorney’s Office, 1445 Cleveland Pl., Annex 1, #303, Denver, CO 80202
(For Respondent)
BY: _______________________